Punjab-Haryana High Court
Jaimal Singh (Through Lrs) And Others vs Amar Nath (Through Lrs) And Others on 26 December, 2012
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RFA No.1329 of 1982 (O&M)
Date of decision:26.12.2012
Jaimal Singh (through LRs) and others ....Appellants
versus
Amar Nath (through LRs) and others ...Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. S.C. Sibal, Senior Advocate, with
Ms. Rupinder Sodhi, Advocate,
for the appellants.
Mr. Deepak Balyan, Additional Advocate General,
Punjab,for the State.
Mr. R.L. Sharma, Advocate,
for the respondents-Amarnath and Kishori Lal.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.
1. In a claim for apportionment under Section 30 of the Land Acquisition Act, the appellants contended as alleged landowners, their entitlement to the compensation determined for property acquired by the State under the Land Acquisition Act. The RFA No.1329 of 1982 (O&M) -2- rival contest was entered by one Amarnath and Kishori Lal, who were shown in records as "thekadars" and the Court held that the 'thekadars' ownership had been established by virtue of the Punjab Abolition of Ala Malikiyat and Talukdari Rights Act of 1952 (for short, the 1952 Act).
2. The learned senior counsel appearing on behalf of the appellants, who are before this Court contended that the Court below failed to notice the express entry in the revenue records from the year 1904 till the date when the acquisition took place where their predecessors Karam Singh and Ajit Singh, sons of Khanda Singh had been shown as owners of the property; the mutation that entered documents of transfer by the respondents did not still remove the reference to the appellants or their predecessors as owners of the property having particular shares and even if the respondents were thekadars, they were not cultivating tenants or occupancy tenants who could obtain full ownership in the property. The learned senior counsel would argue that the legal rendering of the effect of the 1952 Act has not been properly appreciated by the Court below. The said Act itself was not attracted to asses the rights canvassed by the respondents.
3. The counsel Shri Sharma appearing on behalf of the respondents would counter this plea by contending that the landowners' right was itself purchased as shown through Ex. A-3 RFA No.1329 of 1982 (O&M) -3- which was executed on 13.04.1884 that brings to evidence an important fact that the landowners Bahadur Singh son of Deva Singh and Rakha Singh son of Sukha Singh were forsaking their interest by receipt of consideration of ` 140 and in that document, they had admitted to transactions brought about on 29.01.1884 and 05.01. 84 (A1 and A2 respectively) transferring the right of occupancy from Brij Raj Singh to Roda Mall, with the express purpose of securing their consent as owners of the property. According to him, even if they were characterized as thekadars, they also became the owners of the property. The 1952 Act secured for the superior owner also called as "ala malik" no more than a right to secure compensation under Sections 4, 5 and 6 of the Act. The original landowners Bahadur Singh and Lakha Singh and their successors vis., the appellants, therefore, had no subsisting interest in the property to stake their claim in land acquisition proceedings.
4. At the outset, it must be noticed that the contest is only between the persons claiming to be the original owners and the persons, who were shown as thekadars, who assert absolute right in the property. There is no other cultivator or person who is vying for the money determined as compensation payable by way of apportionment alongside the thekadars' claim. The consideration in appeal must therefore be confined to whether the persons claiming as owners, namely, the appellants have still any right to claim the RFA No.1329 of 1982 (O&M) -4- compensation determined by acquisition after the 1952 Act and whether the persons, who were shown as thekadars were entitled to the whole of the amount determined as compensation. The issue has to be resolved only between the parties, who are in lis before Court and I cannot project a contingency of a possible claim by some other person on a plea that the former thekadar is himself only an intermediary and, therefore, not entitled to the entire compensation. If the claim of the appellants as owners were admitted, the appellants also had a grievance that the amount of compensation is not adequate and it should be enhanced.
5. The respective claims could be understood by following the trail brought through ancient documents and revenue entries. Ex.A1 to Ex. A3 represent the oldest instruments of transfer and they bring out the dichotomy as 'owners' and 'occupancy tenants'. All the documents pertain to the year 1884 and the sales A1 and A2 reveal that occupancy rights have been conveyed without reference to the owner. A3 provides that link, which endorses in fact that the earlier transactions under A1 and A2 were done with the concurrence of the owners and they were transferring their own rights for consideration. Ex. A1 to A3 refers to lands, trees and a well and describes the extent of property as 40 ghumoan comprised in Khata No.104. Shri Sibal, the senior counsel appearing for the appellant points out that Ex. A3 property was only an orchard and RFA No.1329 of 1982 (O&M) -5- not the whole of the property. The forsaking of interest that Ex.A3 adverted to had not been shown by the respondents to pertain to the whole of the property and that explains why during all the subsequent years in jamabandis, the appellants/predecessors have always been shown as owners and the respondents have been entered only as 'thekadars' and not as full owners. It is this retention of characterization in the revenue records that holds the key to the appellants to contend that they are entitled to compensation and the 'thekadars', who are but lessees cannot obtain full rights to compensation.
6. Consistently from 1879 (Ex.A78-excerpt) till upto the years when the acquisition was made, the documents make reference to both owners and thekadars. The 1952 Act had been passed to abolish the right of superior proprietors and to confirm full proprietary rights on inferior proprietors. The superior owner includes Talukdar. The Act abolishes the rights of the superior owner, namely, of the ala malik and vests full proprietary rights to adna malik. This is done through Section 3 and clauses (a) and (b) are relevant and hence reproduced below:-
"(a) all rights, title and interest (including the contingent interest, if any recognised by any law, custom or usage for the time being in force), of an ala malik in the land held under him by an adna malik shall be RFA No.1329 of 1982 (O&M) -6- deemed to have been extinguished as from 15th June, 1952; and full proprietary rights shall be deemed to have vested in the adna malik free from all encumbrances.
(b) the ala malik shall cease to have any right to collect or receive any rent or customary due in respect of such land; provided that the extinguishment of the right of the ala malik as aforesaid shall not affect his rights to receive compensation in accordance with this Act."
The Act contains a non-obstante clause and reserves no right for any owner to plead any vestige of interest after the statutory extinguishment of right to an ala malik and recognizes the adna malik to be the person to whom the right shall vest. The property was in the possession of the respondents is also not denied and it can be seen from the earliest mutation entry which was sanctioned in the year 1892-94 (Ex.A79) has entered Bahadur Singh and Ganda Singh as owners and has reconsidered the transfer of cultivators' right with respect to 11 bighas 4 biswas from Birju and Nihal Kaur to Rodu Mal. The Naib Tehsildar has sanctioned the mutation as 27.10.1891. The documents filed by the parties have to be understood to elicit the nature of rights asserted by the respective parties. Ex.A21 which is a jamabandi for 1889-90 describes in the column 'ala malik', 'shamlat deh' and not any of the names of parties. It is with reference to 91 kanals 8 marlas of land. Birju and Nihal Kaur have RFA No.1329 of 1982 (O&M) -7- been shown as cultivators. In Ex.A22, a jamabandi entry of 1893- 94, Roda Mal has been shown as cultivator in respect of 64 kanals 16 marlas and against the column Owner, it is recorded as shamlat deh. In the succeeding years from the beginning of the entry 20th century till late in 1970s, there are entries showing, Gango, Ganda Singh, Lakha Singh, Bahadur Singh, Karam Singh, Ram Singh, Jeet Singh as owners at various stages. They are all stated to be the predecessors of the appellants. I have seen through the documents for all the years and they clearly reveal a consistent chain of relationship from father to son and so on. In all these documents referring to jamabandis, cultivators' names are seen as Birju, Nihal Kaur, Telu Mal, Birbal, Rula Singh, Amarnath, Kishori Lal and in the latest years, Surinder Singh, Selu Singh, Mangat Ram, all of whom claimed to be either the respondents or the respondents' predecessors. Even apart from the jamabandis, there are exhibits which are the mutation entries and commencing from 1893-94 under Ex.A19 to 1978 Ex.A56 and A57. The last of the entries pertain to the transaction of sales dated 23.04.75 and 30.06.75 for relatively smaller extent of property of 1 kanal and 10 marlas. I have not extracted each one of the document, but I have seen them through to vouch for the fact that both the jamabandis and mutations retained, the dichotomy of holding as owners and thekadars. The reference to 'thekadars' however is not consistent and under some documents, RFA No.1329 of 1982 (O&M) -8- they have been referred to as cultivators.
7. The question would still be as to how the extinguishment of ownership should also be taken as extinguishing the right to secure compensation, when the 1952 Act itself still preserves some right for securing compensation. The compensation that the 1952 Act contemplates is an amount which is recoverable from the State in the manner provided under Sections 4, 5 and 6 for the statutory extinguishment. The compensation which the Land Acquisition Act provides is for acquiring the property from an owner in whom the title vests. After the 1952 Act, the title ceases to vest with the superior owners. To that extent, there was no compensation which was payable under the Land Acquisition Act. The compensation, which the 1952 Act contemplates, is only for the extinguishment of right through a statute and secures a recompense for a compulsory extinguishment brought through a distinct law. Section 4 provides for a determination of compensation payable to ala malik and it requires an application to the Collector to be made by an ala malik before a stipulated date, namely, 15th June 1953. The law also provides for entertaining an application beyond the period if such a person was prevented by good and sufficient causes from filing the application in time. Section 5 provides for the principle of paying compensation which is stated to be 8 times the amount of actual rent and Section 6 sets out the mode of making the payment which is an RFA No.1329 of 1982 (O&M) -9- amount which shall be paid in cash to the party entitled to it or be deposited with the Collector by the adna malik. It should have been possible therefore on an application filed by the previous landowners to secure the deposit of 8 times the land revenue by the adna malik and in turn to obtain a disbursement of that money through the Collector. If there was any person, who was aggrieved by such a decision, the Act provides for a mechanism for obtaining corrective measures through appeal, review or revision. The exception to the Act is only with reference to the evacuee property which is protected under Section 9 and Section 10 bars a jurisdiction to question any award or order made by the Collector, Commissioner or Financial Commissioner. The bar to a Civil Court jurisdiction must always be strictly construed and to this extent, I must observe that there has been no order of the Collector made so far for a person to challenge before the Civil Court. Section 11 states that no prosecution, suit or other legal proceedings shall lie against a State Government or any officer so authorized for anything which in good faith done or intended to be done in pursuance of the Act or any of the Rules made thereunder. If the grievance of the erstwhile owner were to be that the State or the Government did not itself issue notice and allow for securing the compensation from the adna malik to be paid over to them, it could still not avail to the landowner to have a remedy or otherwise than by resort to appeal, RFA No.1329 of 1982 (O&M) - 10 - review or revision as contemplated under Section 7. I have outlined the scheme of the Act only to assure to myself that the rights of owner had not at any time been assessed under the 1952 Act and the appellants have not come by any benefit under the said Act.
8. The learned senior counsel for the appellants made also references to the alleged status of respondents as occupancy tenants and wanted to contend that such a right of vesting did not avail to the respondents. His attempt was to show that a thekadar himself is not an occupancy tenant and such a vesting as contemplated by the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act of 1952 did not apply. The learned counsel would refer me to the term "thekadar" as explained by the Dictionary of Revenue Terms, Chawla Publication 2003 edition, where a "thekadar" is defined as under:-
"Thekadar: (1) A farmer (2) A leaseholder, a middleman (3) One who receives the rents from the cultivator and pays the stipulated amount to the proprietor (he is not a tenant). (4) One who takes a license for the sale of spirituous liquors or the like (5) A lessee of an estate, or portion the re-of: a contract."
9. According to him, he is only a leaseholder or a middleman, who receives rents from the cultivators, he is not a cultivating tenant. I have already observed that there is no lis RFA No.1329 of 1982 (O&M) - 11 - between thekadar and any person claiming as actual cultivating tenant. Before me, the dispute is between the previous owner and a person who is referred to in the revenue records as a thekadar. Ex.A1 and A2 refers to the respondent's predecessor as persons in possession and A3 recognizes the purchaser as occupancy tenant. Such a right could be suborned to a cultivator or an occupancy tenant only if there was yet another person claiming title to the property as such occupancy tenant.
10. The learned counsel Shri Sharma, the counsel for the respondents, refers me to Section 5 of the Punjab Tenancy Act of 1887, which reads as under:-
"5. Tenants having right of occupancy - (1) A tenant-
(a)who at the commencement of this Act has for more than two generations in the male line of descent through a grandfather or grand-uncle and for a period of not less than twenty years, been occupying land paying no rent therefore beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon; or
(b)who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to RFA No.1329 of 1982 (O&M) - 12 - the Government or than by any voluntary act, has since ceased to be land-owner continuously occupied the land; or
(c)who in a village or estate in which he settled along with or was settled by the founder thereof as a cultivator therein, occupied land on the twenty-
first day of October, 1868, and has continuously occupied the land since that date; or
(d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or, having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years, has a right of occupancy in the land so occupied unless, in the case of a tenant belonging to the class specified in the clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder.
(2)If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefore beyond the amount of the land-revenue RFA No.1329 of 1982 (O&M) - 13 - thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he had fulfilled the conditions of clause (a) of sub- section (1).
(3)The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usage of a religious community."
11. The Act of the year 1887 and the subsequent post constitution Act vesting rights of occupancy tenants of compulsorily transferring, the proprietary rights through the Act of the year 1952 could be understood only for the purpose of a statutory transfer of owner's right to a cultivator and making him an absolute owner. These acts again prescribe a procedure of such a transfer. The extinguishment of the superior owner or proprietor is not without quid pro quo. The Acts require certain formalities to be followed and even prescribes certain time limits before when the rights could be exercised. In the same way as the 1952 Act provides for compensation the statutory vesting of ownership for occupancy tenant also provides for certain compensation or price to be paid to the proprietor. The formalities have to be brought before the revenue authorities named under the respective Acts. It must be noticed that RFA No.1329 of 1982 (O&M) - 14 - no such formalities have taken place in this case.
12. I cannot accept the contention that all the jamabandis entries showing the respondents as cultivators and the appellants/ predecessors as owners must be discarded. The law recognizes a superior right to a cultivator who has a statutory protection against eviction but whose rights as full owners shall fructify only in the manner envisaged under the Acts. So long as the rights of proprietors were not shown to have completely solidified by the payment of compensation to the owners as the respondents themselves were not treated as owners, the best bargain that they could ask for is to secure a larger size of compensation as much as 75% of compensation ascertained and 25% of compensation must go to the landowners, registered as such.
13. The learned senior counsel Shri Sibal also contended that the quantum of compensation determined was not adequate. The reference has also been under Section 18 of the Land Acquisition Act, as well. It was contended that they were several fruit bearing trees existing therein and the property itself was adjacent to Shri Guru Tej Bahadur Khalsa College, Anandpur Sahib and the property was situate within the municipal limits. The Land Acquisition Collector had assessed compensation at ` 18,000/- per killa of other landowners acquired under the same notification. The landowners were contending that their own land was more fertile RFA No.1329 of 1982 (O&M) - 15 - and had a greater potential for non-agricultural use. The sale instances relied on by the petitioners related to the transactions between the year 1973 to 1976 describing the small extent of properties dealing with the extent less than 10 marlas. The following documents would show the rates dealt with during the relevant time for larger extents of properties, after discarding the sales of smaller extents as irrelevant:-
Sr. Ex. Mutation Date of sale Kind of land Kh. Nos. Area sold Village Sale price Rate per No No. acre
1. AW2/1 1037 11.11.1976 Barani & Gair 7//6/2, 1/5 3K-0M Mataur `30,000/- `80,000/-
Mumkin and Copy of abadi regd. Deed & A62
2. AW2/2 1025 20.4.75 Barani 10//4 and 5K-11M Mataur `50,000/- `72,072/- (copy of 7/2
regd. Deed) & A60
3. AW2/3 1007 23.4.74 Chahi and 11//4 & 1K-10M Mataur `12,000/- `64,000/- (copy of Nehri 5/1
Regd.
Deed) and A56
6. A57 1010 30.6.75 Nehri 15//21/1 1K-0M Mataur `5,000/- `40,000/-
7. A58 1011 30.4.75 Nehri 15//21/2/1 2K-0M Mataur `10,000/- `40,000/-
9. A61 1036 23.11.76 Nehri 19//14/2 13K-12M Mataur `1,40,000/- `82,350/-
14. Of these prices, the maximum has been under A-61 which has fetched value of about ` 82,350/- per acre. Significantly, this has been dealt with as an agricultural land and have fairly a large extent. Considering the fact that the sale was in respect of Nehri, Ex.AW2/1 with reference to a barani land has fetched `80,000/- per acre. It could be noticed that there has been no large variations. ` 80,000/- per killa would itself be appropriate for all types of properties. The respondents who walk away with 75% of the compensation as determined in the light of my reasoning have not themselves come with any cross objection or independent appeal RFA No.1329 of 1982 (O&M) - 16 - for enhancement. However, the benefit of enhancement sought by the appellants, who have 25% share would secure to the respondents also the benefit of enhancement and I allow for enhancement also for the private respondents by virtue of power of this Court under Order 41 Rule 33.
15. The award of the Collector as well as the Reference Court were made before the Amending Act of 1984. The appeal is allowed to the extent of admitting the appellants' rights to 25% of the compensation amount determined and the private respondents will have the remaining 75%. The value of the property stands determined at uniform rate of ` 80,000/- per killa with all statutory benefits under the unamended provision that stood before 24.09.1984.
16. The award stands modified and disposed of as above.
(K.KANNAN) JUDGE 26.12.2012 sanjeev